Opinion
No. CV 10 6002537S
December 10, 2010
MEMORANDUM OF DECISION
The Court heard the defendant's motion to dismiss on the November 29th short calendar. The defendant's position was that the complaint should be dismissed because of mootness in that the prior Torrington zoning regulations Section 5.3.1 concerning distances between retail liquor stores and other defined structures were no longer applicable. The plaintiffs' position was that the regulations were changed improperly and that the distances needed to be remeasured under the old regulations and not under the new regulations.
The Court takes judicial notice of a parallel file involving the same plaintiff (Docket No: CV 10 6001242S) which was dismissed by the Court (Danaher, J.) based on mootness relating to measured distances between package stores and other specific structures. The arguments do not appear to be that different between the parties, but the underlying issues of law can be distinguished. The granting of a site location permit is different than the process of rescinding or modifying a zoning regulation. Therefore mootness may not be presently the applicable grounds for a dismissal of this action. The standard of law is well established as to how mootness is to be determined.
"Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [the] court's subject matter jurisdiction . . . We begin with the four part test for justiciability . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires: (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjusted by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant." (Citations omitted; internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 373-74, 944 A.2d 276 (2008). "[A]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) Id., 374.
There appears here at least one issue concerning abolition of zoning regulations that is justiciable. The parties are well aware that subject matter jurisdiction can be raised at any time as a question of law. Soracco v. William Scotsman, Inc., 292 Conn. 86, 91 (2009); Cimmino v. Household Realty Corp., 104 Conn.App. 392, 394 (2007).
The fact that an appeal has been taken in the prior case concerning the abrogation and/or substitution of the prior zoning regulations (5.3.1) leaves open to speculation the issue of whether or not the prior methodology for measuring distances between retail liquor stores and other specific structures would be applicable retroactively. Therefore, the Court without prejudice to either party hereby denies the motion to dismiss.